Federally Funded Rail Trails Town of Acton Lessons

Federally Funded Rail Trails Town of Acton Lessons Learned September 2015

2015 Mass. DOT Right of Way Forms • • • Federal Aid Guide for Property Owners Municipal Guidelines ROW Certification Requirements Town Meeting Approval Donation Certificate Right of Entry Form Appraisers Affidavit Local Public Agency Appraisal and Review Appraisal Check list Written Offer and Just Compensation Examples Property Affidavit Appraisal Report Template Review Appraisal Template TIP: As a first step, meet with your Mass. DOT ROW compliance officer. Make sure to check if there any updates to forms, regulations etc.

General ROW Process Do not begin property negotiations, easement acquisitions or anything that resembles the like prior to completing the NEPA process. If the Town previously acquired easements on private property, check with DOT ROW to make sure it was prior to the current Uniform Act & NEPA requirements for ROW acquisition— otherwise you may need to go through the entire Federal ROW acquisition process to reestablish the easement or complete a confirmatory taking or agreement. 1. Acquire Town Meeting Vote for the authorization of acquisitions of real property interest for the rail trial (see Town of Acton example) 2. NEPA Process is completed (typically during the 75% Design phase) 3. The Town is cleared by Mass. DOT to begin easement acquisition process and negotiations - See “Municipal Guidelines ROW” - Requires Appraiser and Review Appraiser 4. Schedule Board of Selectmen meeting to vote on easements and any order of takings. (Must be 30 days after written offer is sent to property owners. ) 5. Record easements and votes at the Registry of Deeds. 6. Submit ROW packet to Compliance Officer. TIP: Timelines tend to be tight and you need to be flexible as there a lot of moving parts. Stay in touch with your compliance officer from DOT. It’s always better to alert them of any potential problems as soon as it arises.

1. Acquire Town Meeting Vote for the authorization of acquisitions of real property v Obtain TM approval for acquisition of property to allow the Town authority to acquire by: • Purchase • Gift • Eminent Domain or otherwise (See Town of Acton Warrant Article) v 2/3 rds vote is required for Eminent Domain v This should be done prior to beginning the private property acquisition process. TIP: Maynard’s counsel required them to list every property along the trail that had an easement. If possible, we strongly recommend against this. Unforeseen easements could be added later on in the process after the TM vote has been taken. If your counsel insists on listing each easement, suggest instead to list all properties along the trail and those abutting the trail to cover your bases.

2. National Environmental Policy Act (NEPA) Process v NEPA Process is typically completed during the 75% Design phase Categorical Exclusion (CE) , Environmental Assessment (EA) or an Environmental Impact Statement (EIS) is required. Most likely this will be a CE. Requires clearance of the following: 1. Section 4(f) of the DOT Act – Where the trail traverses over parks/recreation land The Town must submit a letter stating that the project is acceptable within the designated use of the property and that all possible planning to minimize harm has been accomplished in the location and design of the bikeway. (See example letter) Other documentation or approvals may be necessary. 2. Article 97 State Constitution – Where the trail traverses over land acquired for conservation purposes The Town must submit confirmation that the project does not trigger the need for Article 97. (See example memo from Town Counsel). Other documentation or approvals may be necessary. 3. Section 106 National Historic Preservation Act – Where the trail traverses over historic properties The Town should consult with their Historical Commission/Historic District Commission and ask for a letter of approval. Other documentation or approvals may be necessary. TIP: Begin contract process with appraiser & review appraiser while you wait for approval. Ask for the State’s pre-approved list otherwise you may need to solicit 3 quotes.

3 a. Funding for Easements v Make sure you have funding lined up to pay for : - All temporary and permeant easements Services for Appraiser and Review Appraiser If not already itemized in your design engineer contract, layout ROW Plans for recording Permanent Easements Unforeseen items (ex. One property owner wanted the easement area staked by surveyors. This was not included in the design engineer contract. ) v Funding sources we used for property acquisitions: - Town Meeting appropriations Community Preservation Funds. We kept the language general enough that funds could be used for acquisition, appraiser services, unforeseen project items If you acquire Community Preservation Funds, make sure the language of the vote allows the Town to acquire easements with the funds through: purchase, gift or eminent domain. ALSO – the Community Preservation Committee needs to vote to approve the use of CPC funds for property acquired by eminent domain. TIP: It’s best to assume NO easements will be donated – plan for the worst. CPC funds can always be turned back.

3 b. ROW Acquisition Process with Private Property Owners (See Detailed Right of Way Easement/Private Property Acquisition Steps handout) • Send Initial Contact letter to property owner by certified mail. Keep copies of the receipts. • Schedule a site visit with the property owner, appraiser and Town representative. Keep a Copy of the Appraiser Affidavit. • Appraiser begins appraisal followed by the review appraisal. • Obtain Draft Easement Deeds/Order of Takings/Licenses from Town Counsel for all easements except where a Right of Entry is signed. • Send the written offer by certified mail. (Must be 30 days prior to BOS vote of award. ) Keep copies of the receipts. • If the easements are being acquired as “easement agreements”; have property owners sign the easement deed prior to the BOS meeting for fast turn around– signatures require a public notary. • BOS votes to accept the acquisitions, signs easement deeds/orders of takings– signatures require a public notary. (Must wait 30 days min. after the written offer was sent. ) • Record the easement at the Registry of Deeds. • Make payment to the property owner ASAP after the recording at the Registry of Deeds. Obtain proof of receipt of payment to submit to DOT or make a copy of the check before sending. • Submit all required forms to DOT Compliance Officer for ROW certificate. TIP: Throughout the process make sure to keep the Property Contact Form up-to-date as you go … this makes the process much easier at the end! TIP: Check with your Finance Department to see how much time they need to issue checks, they may need to do this ahead of time in order to meet your deadlines.

3 c. Working with the Appraisers v If you are concerned with funding to pay for the easements, you can ask an appraiser early on for a rough estimate on the value of the easements for the Town’s budgeting purposes only. (This will obviously cost some money for the estimate but could assist with any large funding requests at TM). v Tighter Federal Hwy regulations now require an appraiser and review appraiser under the Uniformity Act. - The Appraiser will complete the appraisal report, send it to the Review Appraiser, there may be adjustments made between, then you will receive both the Appraisal Report, Review Appraisal Report and Just Compensation Report. The Review Appraiser is the one that establishes the “Just Compensation” They should follow the forms and requirements provided by DOT ROW. v The Appraiser must be present at the site visit with the property owner; the review appraiser did not need to attend unless they wanted to. v The Appraisers should be working off the latest ROW plans approved by Mass. DOT. Make sure to send any revised ROW plans if they are altered mid appraisal process. TIP: Set a deadline for both the Appraisals and Review Appraisal Report. Make sure you figure out your timeline, counting back from the 30 -day notice of the BOS meeting and the written offer letter. Give yourself some time (+/- 2 weeks) to review the appraisers report and prepare your written offer letters.

3 d. ROW Process for Public Property & Town Owned Land This may sound silly, but if there are easements shown on Town property, the Town may need to “grant easements to itself. ” v Our counsel drafted “Deed of Easements” identifying the easements the Town would grant to itself for rail trail purposes. The BOS signs as grantee and grantor. v Check with your compliance officer if you have questions about where this is required. This may not be necessary for land that the Town acquired within the rail right of way, for the purposes of the rail trail, if done at a time when the Uniformity Act was not in play. v The purpose of these easements is to protect the Federal investment. TIP: This will most likely sound strange to your counsel, as it did ours, but – it is one of the Federal Hwy check-off requirements for ROW approval. The compliance officer was happy to meet with our counsel to explain this requirement if there is push back.

3 e. Appraisals are not required for the following circumstances: v If a property owner doesn’t want one and signs a Right of Entry Form and Appraiser’s Affidavit. v If a property owner doesn’t want one and signs a certificate of donation form and Appraiser’s Affidavit. v Town owned property. v Check with your compliance officer about appraisals for other public entities that can use License agreements. We were not required to do appraisals for these easements. (Example: Concord Water Dept. & MBTA) Licenses are not record. TIP: Unless a property owner signs the Right of Entry Form or Donation Form upfront and waivers their right to an appraisal, assume you will need to do an appraisal. TIP: Right of Entry forms are revocable at any time. We only used these for temporary easements that were not absolutely necessary for trail construction and/or if we had a very good relationship with and trust in the property owner.

4. Board of Selectmen Meeting to Vote and Sign Easements Documents v BOS meeting and vote must be at least 30 days after the notice of the written offer is sent. Make sure to schedule this date far in advance if the project is advertising in September – summer vacations can make a quorum difficult. v Make sure a public notary is present at the meeting. TIP: Double check that your regular OML agenda is posted 48 hrs. in advance.

5. Record easements & votes at the Registry of Deeds v Each permanent and temporary easement should have a deed document signed by all parties and should be recorded – even Town owned properties. - The two exceptions are Licenses and Rights of Entries. v Our counsel did not require us to have a layout ROW plan for temporary easements or Town owned easements. We referred to “the ROW plan on file with Mass. DOT”. v Permanent easements needed separate layout ROW plans to be recorded as referred to in the deed language. TIP: Consult with your counsel early on to determine which easements will require ROW Layout Plans. This information should be relayed to your design engineer who will create the recordable plans.

6. Submit ROW Package to DOT Compliance Officer v Use the “Municipal Document Requirement Checklist” as your guide. • The Order of Taking as recorded. With book and page or document numbers along with the recording date. • Plans as recorded, with plan book/page or document number clearly shown. • Deeded donations with the book/page or document number and recording date clearly shown. • A properly executed Certificate of Donation on all appropriate parcels. • Executed Rights of Entries on affected properties with attached Affidavits. • A certified copy of your town meeting vote that authorized acquisition. • Written Offer mailed to affected property owners • Property Affidavits on all parcels. - This certifies that the Town followed the ROW procedures for each acquisition. • Appraisal Report –Provided by Appraiser • Appraisal Affidavit letter offering owner accompaniment on appraisal inspection –Copy from the site visit • Appraisal Review Report – Provided by Review Appraiser • Written Just Compensation Report – Provided by Review Appraiser • Appraisal & Review Appraisal Checklist from LPA Appraisal Function Job Aid. – Provided by Appraiser and Review Appraiser • Copies of Property Owner Contact Form for all parcels. – As noted, keep this updated as you go along • Proof of payment tendered to property owners. ( Copy of checks)

Next Steps v Obtain ROW Certificate from Mass. DOT v Project is put out for bid by Mass. DOT project manager v Traffic Control Agreement signed by BOS, Counsel and Town Manger v Municipality 110% Agreement v Public bid, bid opening and contractor selection/project construction scheduling by Mass. DOT v Keep public updated – Acton set up a Blog for the BFRT for construction updates

Other TIPS v Keep the Boston MPO updated on project progress! Attend the meetings, speak during public input. v Keep your project updated on the MPO Interactive TIP Database v If you have not done so already, do a title investigation on the rail corridor. v Knowing when to redesign to avoid issues v Negotiating ½ Donation – ½ Payment now requires Federal Hwy approval which can take additional time. v Environmental Insurance may be needed

Other Environmental Permits • • 401 Water Quality Certificate Chapter 91 License Army Corp of Engineers (Section 404) Floodway or Flood plain impacts Local Conservation Commission (RDA, ANRAD, NOI) Natural Heritage & Endanger Species Program (NHESP) EOEEA – Article 97 (MA State Law – open space land) TIP: Permitting will be conducted by your design engineer project manager; some assistance may be needed to help local processes and coordination.